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Judicial Review in India

Judicial Review in India

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Published by Anupam Gurung
A brief description on the working of Judicial Review in India.
A brief description on the working of Judicial Review in India.

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Published by: Anupam Gurung on Sep 07, 2009
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04/13/2013

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Interbranch Bargaining and Judicial Review inIndia
Sunita Parikh and Alfred DarnellDepartment of Political ScienceWashington University in St. Louissaparikh@wustl.edu,adarnell@wustl.eduVersion 1.0DRAFT FOR COMMENTSONLY.PLEASE DO NOT CITE OR CIRCULATE WITHOUTPERMISSION.Prepared for Presentation at the Law and Political Economy Colloquium at Northwestern University Law School, October 29, 2007
 
 
Introduction
Since the emergence of modern political institutions in the 18th Century, anindependent judiciary has been a mainstay of government. Courts have been created or evolve into existence either at the time of a state's inception, such as the United States,or they are introduced in the course of transforming governmental structures, such as inIndia. India's modern judicial system was introduced in the late 1700s and went throughseveral stages of development before reaching its current structure and form. Eventhough each branch of government has as one of its prime objectives the promotion and protection of the state and society, conflict between the different branches of government over the role and power of the judiciary has been relatively commonplace.We would expect that such discord would have an effect on the way courts makedecisions and situate themselves in the wider politics of the state and in relation to other state institutions. Surprisingly, this facet of judicial development has not been widelystudied, although the conflicts between courts and elected governments in newlyconsolidating democracies have begun to receive attention (Orkeney and Scheppele1996, Scheppele 1999, Vanberg 2001, Epstein et al. 2001, Helmke 2002, Helmke2004).Scholars have advanced many theories to explain judicial behavior. Some propose that judges are politically astute, strategic in their actions, and interested inachieving specific policy goals. Others suggest that judges are politically disinterested,sincere in their actions, and motivated by issues of law rather than policy outcomes.These characterizations focus on judges’ attitudes about the specifics of the cases theydecide and the political ramifications of specific outcomes (or lack thereof), but theytend to neglect any consideration of judges’ attitudes toward the establishment andmaintenance of the institutions in which they are situated. Since the U.S. has driven thedevelopment of theory, this focus is not surprising; the Court has been well established
 
 for two centuries and its social and political legitimacy is rarely questioned. The neglectis harder to justify for studies of judicial politics in new democracies and developingcountries, however. In these contexts, the court’s ability to issue decisions, the extentto which these decisions are honored in the implementation process, and the itsinsulation from political pressure are still being determined. We should expect to seeconflicts that arise from different preferences over policy, but we should also find thatconflicts arise because of different preferences over the role of judicial institutions.In this paper we examine the creation and early tenure of three apex courts inIndia, which were created at three different points in time and by three differentgovernments. The first, the Supreme Court of Judicature, was chartered by the BritishCrown and Parliament in 1773 and appeared to be endowed with wide and powerful jurisdiction. The second, the Federal Court of India, was established by theGovernment of India Act of 1935 and was intended to consider disputes among British provinces and Indian princely states. The third, the Supreme Court of India, wasestablished in the Constitution of India and given original and appellate jurisdiction aswell as explicit powers of judicial review. While the political and institutional context inwhich the three courts operated were quite different, they shared traditions of Britishcommon law and British political institutions and cultures. In addition, all threegovernments shared a key characteristic: all had the ability to alter the courts if they became sufficiently dissatisfied with them. The governments of the British Raj had theunilateral power to do so, and the post-independence government was a parliamentarysystem in which the Congress Party dominated and faced no unified oppos ition. Nevertheless, all three courts soon found themselves issuing dec isions that were indirect conflict with the desires of the executive branches that had created them andleading those branches to respond.We explore these cases to try and solve the contradictions of why new courtschallenge the authority and power of more powerful institutions and why judges make

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